Hotly contested water quality rules boil over

Key Takeaways

Conflicting opinions clashed during a NACo workshop last month about the upcoming proposed changes to the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). Attendees passionately disagreed on which waters should be considered federal jurisdiction versus state and local jurisdiction. Members from different regions clashed over what is deemed an overreach by the EPA and Army Corps. In contrast, others said the changes would consistently give them the ability to better protect ephemeral and intermittent streams.

Navis Bermudez, deputy assistant administrator at the EPA’s Office of Water, said the Clean Water Act “defines waters in the U.S., and this definition is fundamental to the entire CWA. It establishes which waters will receive protection from toxic wastes and other pollution and which water bodies will not.” The problem comes in the implementation: Rural farmers and ranchers are subjected to vague language about ephemeral streams, human-made ditches and dried-up creek beds.

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NACo's WOTUS Action Center contains public comments and a detailed analysis of the proposed WOTUS rule

Bermudez said the EPA is interested in hearing from those “on the ground,” dealing with the direct implementation of the rule so the agency can collaboratively craft a strong and durable regulation. The EPA will soon announce the dates and locations of 10 regional stakeholder engagement opportunities to better hear from local communities, she said.

Polk County, Minn. Engineer Rich Sanders, National Association of County Engineers representative, asked for more collaboration in the intergovernmental partnership, noting that it is highly critical for counties to meet with federal partners when crafting regulations. Sanders said counties should be given the flexibility to handle their own permitting when state and local regulations are stricter than federal requirements.

“The absence of burdensome bureaucratic red tape can assist in increasing the purchasing power of our existing funds,” said Sanders.

Others asked for ephemeral streams to be excluded, as they are not “navigable waters.” Rural Affairs Steering Committee Supervisor Craig Pederson, Kings County, Calif. supervisor, said producers and ranchers value clarity above all else. The new rulings are not clear enough, especially when paired with the significant fines attached to some of these violations.

Sublette County, Wyo. Commissioner Joel Bousman, chair of the Public Lands Steering Committee Commissioner, urged the EPA to delay making significant changes until after the Supreme Court ruling in Sackett v. EPA.

“This court case has major ramifications for the Clean Water Act implementation and could send agencies all the way back to the drawing board to start over writing a rule under a new Court precedent,” said Bousman. He also supports the exclusions of human-made structures like retention ponds to expedite repairs and reduce costs.

Santa Fe County, N.M. Commissioner Anna Hansen expressed her support for including language around ephemeral streams, as her county has one primary water source classified as ephemeral and intermittent. New Mexico lacks “primacy” for issuing permits. The Land of Enchantment is only one of four states that do not have primacy under the CWA for issuing National Pollutant Discharge Elimination System permits for point source discharges. This lack of authority ties New Mexico’s state water regulations to the federal government.